Incentivizing Municipalities to Adapt to Climate Change: Takings Liability and FEMA Reform as Possible Solutions

Abstract

This Article addresses a central question of climate adaptation in the United States: how can municipalities, which are best positioned to take a lead in climate change adaptation efforts, be incentivized to do so? The Article analyzes and ultimately rejects as doctrinally unmoored and counterproductive one idea that has been suggested by commentators and arguably endorsed in a few noteworthy recent cases—that is, that municipalities and other governments be held liable under the Takings Clause for their failing to take adaptive measures that protect private property. Instead, the Article argues that municipalities should be given an incentive to adapt by means of modifications in federal aid programs that in effect would require the municipalities to obtain private insurance against climate-change-related damage to public property and infrastructure. This proposal, if adopted, would be a salient first step toward the transformation of federal policy from one that actively discourages private adaptation to changing patterns of extreme weather and sea level rise to one that actively encourages such adaptation.